Family Law Case Report – interim order for sale of property BR v VT [2015]

This case concerns a husband’s application for the interim sale of the family home, in which his wife and children still lived, before ancillary relief proceedings had really got started.

Mr Justice Mostyn ordered the sale of the property under FPR rule 20.2(1)(c)(v), and very helpfully summarised the ways in which such an application can be made:-

‘There are three procedural routes whereby such interim relief may be awarded. The first by means of an order made under section 17 of the Married Women’s Property Act 1882 (“MWPA”), as clarified by section 7(7) of the Matrimonial Causes (Property and Maintenance) Act 1958, which expressly confirms the power to order a sale. The second is by an order made under sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996. This route depends on both spouses having a beneficial interest in the property. The third is under FPR 2010 rule 20.2(1)(c)(v). This provides that the court may grant as an interim remedy an order “for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly”. Relevant property is defined as “property (including land) which is the subject of an application or as to which any question may arise on an application”. It is the counterpart to CPR rule 25.1(1)(c)(v) which is phrased identically.’

In this particular case the property was in the husband’s sole name, so there was also the wife’s occupation rights to deal with. Mostyn found here that if there was an application for interim sale before it, the court could not order vacant possession of it WITHOUT first undertaking the exercise required by section 33 of the Family Law Act 1996. He said to do so would bypass specific legislation.

One final point of interest from the judgment was Mostyn’s reference to section 24A Matrimonial Causes Act 1973, which was enacted by the Matrimonial and Family Proceedings Act 1984. He explained why this particular section, which provides for an order for sale, is not relevant in the interim:-

‘An order under that section can only be made on or after the making of an order for periodical payments (secured or unsecured) or lump sum under section 23, or a property adjustment order under section 24, or a legal services payment order under section 22ZA. Such an order is usually made alongside the principal order but it can be made at anytime thereafter and as such is a useful weapon in the armoury of enforcement (a facility that is often overlooked). But an order under section 24A cannot be made during the pendency of the proceedings, save as an adjunct to a legal services payment order.’

Before Mr Justice Mostyn

Between BR and VT

Hearing date 24 September 2015

There are three procedural routes whereby such interim relief may be awarded. The first is under section 17 of the Married Women's Property Act 1882 ('MWPA'), as clarified by section 7(7) of the Matrimonial Causes (Property and Maintenance) Act 1958. The second is by an order made under sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). This route depends on both spouses having a beneficial interest in the property. The third is under FPR 2010 rule 20.2(1)(c)(v). This provides that the court may grant as an interim remedy an order 'for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly'.